"Empowered 55" is a proposed amendment to the Honor Committee Constitution that would lower the threshold required to make future amendments to the Honor Constitution from 60% to 55%. It has been billed as a means to accomplish previously unsuccessful change to a multi-sanction system, but we believe that this amendment is shortsighted and imperils the integrity of the Honor Constitution.

In 2005, the Consensus Clause[1] amendment to the Honor Constitution narrowly failed to pass ratification by the student body, garnering 59.5% of the popular vote. This result was even more successful than last year’s multi-sanction vote of 58.9%[2]. The Consensus Clause would have required a majority of the entire student body[3] to vote in favor of constitutional changes affecting sanctioning. This would have effectively locked the single sanction in stone, as the largest voter turnout in recent history[4] failed to even reach 41% (because not all authors uniformly support the single sanction, we will not comment on the merits of the Consensus Clause).

Why does a failed amendment in 2005 matter in 2017? If "Empowered 55" had been the status quo in 2005, a multi-sanction system would now be a practical impossibility, despite being increasingly popular within the student body. The "Empowered 55" amendment seeks to align the Constitution with the popular will of a small minority of students, but its nature is dangerously misguided in not accounting potential impact on the system in the long term. As law students, we know the purpose of designating a document a “Constitution” is so that it may serve as “a superior, paramount law, unchangeable by ordinary means.”[5] This amendment threatens to render our Constitution’s designation obsolete. From the viewpoint of constitutional construction, a Constitution is meant to preserve a small subset of fundamental rights and principles above other mere laws. While some constitutional scholars recognize the inherent tension between countermajoritarian constitutionalism and populist democracy (see, e.g., Richard Albert, Constitutional Handcuffs, 42 Az. St. L.J. 663, 664 (2010)), a balance must be struck to avoid “frequent reference[s] of constitutional questions to the decision of the whole society”[6] driven by populist passion over reason and understanding.[7]

While 5% may seem like a minimal change at first, it is a definitive step towards delegitimizing Honor. The current 60% threshold is already lower than comparative institutions on campus—UJC requires two-thirds supermajority to ratify an amendment—and lowering it further risks repeatedly disenfranchising ideological minorities in the face of a smaller majority, separated by a large swath of the indifferent. Our concept of democracy must not fail to recognize and protect minorities in decision-making. The sponsors cite “egalitarian[ism]” as a value and “injustice” as something to eschew, but isn’t it true that this amendment allows a smaller majority to impose their will?

In addition to stripping minority protections, “Empowered 55” will lead to destabilization. Inviting continual change to a Constitution raises grave issues of notice (both legal and conceptual) and reliance, eroding the function and value of Honor. Focusing on amendments, what is to stop future student bodies from resetting the minimum to a simple majority? A plurality? Removing the “10% of all students” floor? Every decision students make in reliance on a document that will become the “so-called Constitution” will be in question. Why would anyone trust the current consequences in the face of unending change? This does not result in a “health[y] and…robust” system. It erodes it away to nothing more than “cavalier language.”

Using the current supermajority to moderately entrench formal amendment procedures does not immunize Honor from change. The data do not support this contention. Out of the eight referenda proposed since 2010, six have been ratified by the student body (2010,[8] 2011,[9] 2013,[10] two in 2015,[11] and 2016[12]). The argument that one or more of these amendments were not controversial does nothing to delegitimize their passage.

A vote for “Empowered 55” signals that we no longer value the governance of our system. A vote for “Empowered 55” signals that we no longer value Honor.

No matter your opinion, we encourage law students to exercise their right to be heard by voting at www.uvavote.com no later than Thursday, February 23, at 4:00PM.